In December 2014, the European Commission launched the latest public consultation on the review of the Working Time Directive 2003/88/EC in the hope to make progress following the failed negotiations of the cross-sectoral social partners at the end of 2012.
The Commission’s declared goal is to consider making appropriate changes that would make the Directive more suitable for dealing with the ongoing challenges Europe’s employment sectors are subject to. The outcomes of the consultation are supposed to feed into a thorough impact assessment of a range of possible options for the review.
Especially following the SIMAP and Jaeger judgments by the European Court of Justice , many MS made use of the ’opt-out derogation’ for activities in areas such as public health or care services where a more flexible organisation of ’on-call’ time was deemed to be more workable. To complicate things further, the transposition of the Directive has been uneven given the different and complex ways in which rules are decided upon in the MS, e.g. taking the form of collective agreements, sectoral or other types of legislation including at sub-sectoral level.
One of the points already addressed in EPHA’s 2012 Briefing on the EWTD is that, in its current state, the Directive provides little flexibility when it comes to the organisation of working time in the healthcare sector. For example, compliance with its requirements has been identified as a problem in the United Kingdom in relation to medical training of doctors. This is because trainees have less exposure to crucial daytime activities (e.g. clinics and procedure lists). Moreover, in some countries self-employment is used to circumvent requirements as the Directive does not apply to this category of workers.
It is also vital to measure the impact of any working time legislation since there can be unintended ’spillover effects’, for instance additional tasks being shifted to health professional groups with less leverage.
While EPHA’s overall position is that working time must never be excessive and provide for sufficient rest periods for all health professionals to enable them to do their jobs in the best possible way and protect patient safety, a more flexible interpretation of ’on-call’ time would help safeguard the provision of health services where personnel is required on a 24/7 basis to care for patients and workforce shortages are common. It could be considered whether for example only parts of inactive on-call time should be counted as working time, depending on negotiations at national level between the relevant social and professional partners.
Regarding stand-by time, EPHA would like to see further clarification of how it is recorded by employers given that night-time disturbances – for instance in order to obtain telephone advice – can be detrimental to health and can have a negative impact on professional performance and ultimately also on occupational and patient safety.
As for compensatory rest, the possibility to spread it over two or four days (as opposed to the current practice of having to take it right after the extended shift) but ensuring that sufficient sleeping time is provided could also help.
Since continuity of service is of utmost importance in the healthcare sector, EPHA believes that additional derogations should apply to health professionals. The ’opt out’ option not to apply the weekly limit of average weekly working time of 48 hours should also be maintained for MS and in cases where workers agree to this individually and freely in concertation with their employers.
Finally, a revised Working Time Directive should take into account the changing nature and organisation of work, e.g. allowing for opportunities for teleworking and flexitime so that a better life-work balance can be achieved and family obligations can be met, which is especially important given the size of the female health workforce but also a growing problem for many men.
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